Western Cas. and Sur. Co. v. D & J Enterprises, Inc.

• Citation: 720 S.W.2d 944
• Decision Date: 16 December 1986
• Docket Number: No. 68011,68011
• Court: United States State Supreme Court of Missouri
• Parties: WESTERN CASUALTY AND SURETY COMPANY, a Kansas Corporation, Plaintiff-Appellant, v. D & J ENTERPRISES, INC., a Missouri Corporation, et al., Defendants- Respondents.

Page 944

720 S.W.2d 944

WESTERN CASUALTY AND SURETY COMPANY, a Kansas Corporation, Plaintiff-Appellant, v. D & J ENTERPRISES, INC., a Missouri Corporation, et al.,

Defendants- Respondents.

No. 68011.

Supreme Court of Missouri,

En Banc.

Dec. 16, 1986.

Edward W. Mullen, Gary M. Cupples, Kansas City, for Western Cas. & sur. co.

Thomas H. Stahl, Kristin L. Farnen, Gladstone, for Garney Co., Inc.

James A. Rahm, Carrollton, Laurence R. Tucker, Marvin Ray Motley, Kansas City, for D & J Enterprises.

DONNELLY, Judge.

Appellant, Western Casualty and Surety Company, filed a suit for declaratory judgment to determine whether a loss sustained by its insured, D & J Enterprises, was covered by one of its policies. The trial court found that the loss was covered by the policy. The Western District of the Court of Appeals reversed and remanded with direction to enter judgment in favor of Western Casualty. The cause was transferred here by order of this Court and is decided here "the same as on original appeal." Mo. Const. art. V, § 10.

In December 1980, an employee of D & J was driving a truck owned by D & J and was pulling a leased trailer. D & J was being paid by Garney Company to haul a bulldozer leased by Garney from another company. During the haul, the driver drove under an overpass that had a clearance that was insufficient to allow the bulldozer to go through. The bulldozer struck the overpass, causing three log chains to break and a part of the bulldozer to drop, thereby damaging the trailer. Also, several bolts that were used to attach the fifth wheel on the tractor were sheared off.

The issue is whether such circumstances constitute a "collision" under the policy. An attachment to the policy states:

THIS POLICY INSURES:

The insured's Liability for Loss of or Damage to Property Insured Hereunder Directly Caused by:

* * *

* * *

(b) collision, i.e., accidental collision of the vehicle with any other vehicle or object (the striking of curbing or any portion of the roadbed or the striking of rails or ties of street, steam or electric railroads, or contact with any stationary object in backing for loading or unloading purposes, or the coming together of trucks and trailers during coupling or uncoupling, shall not be deemed a collision);

Appellant contends that the unambiguous language of the policy shows that the loss was not covered because the damage did not result from the vehicle colliding with the overpass, but rather resulted from the cargo colliding with the overpass. Respondent argues that the language is ambiguous and that an initial impact with the cargo is sufficient to come within the policy definition of "collision."

If ambiguous, "an insurance contract reasonably susceptible of any interpretation favorable to the insured will be so construed * * *." Bellamy v. Pacific Mutual Life Insurance Company, 651 S.W.2d 490, 495 (Mo. banc 1983). On the other hand, "[i]f we say that language becomes ambiguous because some one concludes it is ambiguous or some other concludes it is ambiguous, we save ourselves much labor, but we have applied a test that scarcely will stand examination. Unless we can point out in language we are considering wherein it has a double meaning, we are not justified in saying it is ambiguous. * * *." Orr v. Mutual Life Ins. Co. of New York, 57 F.2d 901, 903 (W.D.Mo.1932).

In our view, the language "collision of the vehicle with any other vehicle or object" does not have a double meaning and we are not justified in saying it is ambiguous. See Wolverine Insurance Co. v. Jack Jordan, Inc., 213 Ga. 299, 99 S.E.2d 95 (1957); Birmingham Fire Ins. Co. of Pa. v. Newsom Truck Lines, 390 S.W.2d 537 (Tex.App.1965); and Trinity Universal Insurance Co. v. Robert P. Stapp, Inc., 278 Ala. 209, 177 So.2d 102 (1965).

The judgment is reversed and the cause is remanded with directions to enter judgment for Western Casualty and Surety Company.

BILLINGS, WELLIVER and ROBERTSON, JJ., concur.

RENDLEN, J., concurs in result.

BLACKMAR, J., dissents in separate opinion filed.

HIGGINS, C.J., dissents and concurs in separate dissenting opinion of BLACKMAR, J.

BLACKMAR, Judge, dissenting.

I believe that the judgment of the circuit court is correct and should be affirmed.

I am confident that the insured, in seeking insurance coverage which would protect him from claims by the owners of the heavy equipment he undertook to transport, expected to be covered for casualties of the kind which happened here. The parties knew, from the character of the goods shipped, that in all probability portions of the cargo would extend above the top of the truck. A limited definition such as the company sought to impose would greatly limit the value of the insurance protection.

I am just as confident that the insurance company did not intend to cover the risk of collision in which the vehicle is not directly impacted, at least not without an additional premium. This conclusion is fortified by the numerous cases decided over the years which involve substantially similar contract language. The company is entitled to limit the risk which it will insure, if it does so by appropriate language. Because the insurance company composes the policy language, uncertainties in interpretation are resolved in the insured's favor. Bellamy v. Pacific Mutual Life Ins. Co., 651 S.W.2d 490 (Mo. banc 1983).

The policy definition is not a natural definition of "collision." ¹ Substantially the same language has appeared in insurance contracts for many years. Some courts have found this language clear, ² while others have held it to be ambiguous. ³ This insurance company has perpetuated the language, without substantial change. It took no steps to clear up the confusion which numerous other courts have perceived.

The company compounded the problem by specifically appending to the definition certain occurrences which were not to be considered collisions. ⁴ It said that it would not insure against damages caused by running into a curb, a rail, or against collision resulting from backing. It did not say that it did...